The county raises one argument warranting discussion here that was not
presented in Port of St. Helens. Under OAR 660-023-0180(4)(b)(F), a local government,
in considering conflicts with proposed mining of a significant aggregate site, may
consider

"other conflicts for which consideration is necessary in order to carry out
ordinances that supersede Oregon Department of Geology and Mining
Industries (DOGAMI) regulations pursuant to ORS 517.780."

The county notes that it has adopted a Surface Mining Ordinance (SMO) that supersedes
DOGAMI'S regulations. Further, the county's SMO requires compliance with all other
applicable county ordinances. The county reasons that, because of this, and despite the
requirements of OAR 660-023-0180(7) to the contrary, it may directly apply all of its
putatively pertinent ordinances to the application in this case. We agree with LUBA's
response to the county's argument. LUBA held:

"We conclude that OAR 660-023-0180(4)(b)(f) only requires and
allows consideration of additional conflicts under the SMO if such conflicts
must be considered under the provisions of the 57-page SMO itself."

Respondent cross-petitions from LUBA's holding that respondent was not
entitled to recover attorney fees from the county. ORS 197.835(10) provides, in relevant
part:

"(a) The board [LUBA] shall reverse a local government decision
and order the local government to grant approval of an application for
development denied by the local government if the board finds:

"(A) Based on the evidence in the record, that the local government
decision is outside the range of discretion allowed the local government
under its comprehensive plan and implementing ordinances[.]

"* * * * *

"(b) If the board does reverse the decision and orders the local
government to grant approval of the application, the board shall award
attorney fees to the applicant and against the local government."

LUBA concluded that those provisions were inapplicable, because the basis
for its reversal was that the county made a decision that was outside the range of
discretion allowed under OAR 660-023-0180, LCDC's administrative rule, as distinct
from being outside the discretionary range under the county's own comprehensive plan
and ordinances. Respondent takes issue with both the accuracy and the meaningfulness
of that distinction. It is unnecessary for us to decide that question, because LUBA's
decision is affirmable on an alternative ground. The attorney-fee requirement in ORS
197.835(10) arises only if LUBA reverses the local decision "and orders the local
government to grant approval of the application[.]" (Emphasis added.) LUBA did not do
that here. Rather, it concluded that, "[a]s a consequence of our reversal of the county's
decision, the county must take any additional measures required to perform its obligations
under OAR 660-023-0180(4)(e) and (f), consistent with this opinion." (Footnote
omitted.) Both in terms and substance, LUBA's conclusion falls short of an outright
direction to approve the application.

Affirmed on petition and cross-petition.

1. We would note that the county's opening brief violates our rules, in that no
copy of LUBA's opinion is appended to it. See Horizon Construction, Inc. v. City of
Newberg, 114 Or App 249, 251, 834 P2d 523 (1992). We would again emphasize that
this is not just a technical violation of the court's rules. It is important to the court's
preparation for argument that a copy of LUBA's opinion be included in the brief.

2. Respondent argues that this court should not consider petitioner's challenge
to the rule, because we lack jurisdiction to consider such a challenge. Respondent reasons
that LUBA had no jurisdiction to consider the validity of the rule and, therefore, this court
also lacks jurisdiction to do so in the context of this appeal. Respondent also argues that
petitioner did not preserve the question of the validity of the rule before LUBA. We have
already determined that the challenged rule is valid in our decision in Port of St. Helens.
Nonetheless, we note that this court does have the authority to consider the validity of the
administrative rule under these circumstances. See Hay v. Dept. of Transportation, 301
Or 129, 719 P2d 860 (1986).